Whalen wasn’t Counterman’s first victim. He had been arrested for threatening two other women, saying he would “bash their heads in” and “rip their throats out.” Yet with the court’s new ruling, such threats would be perfectly acceptable because the “Free Speech Clause of the First Amendment requires proof of intent” in order to be considered “true threats.”
The majority decision, written by Justice Elena Kagan, found Counterman’s stalking — which caused Whalen to leave her job and move out of Colorado for personal safety — comparable to political parody or angry commentary made by protesters at demonstrations. Despite ample evidence that Counterman was intentionally stalking Whalen, the justices decided his “inadvertently threatening speech cannot be criminalized.”
Justices Roberts, Alito, Kavanaugh, Jackson, Sotomayor, and Gorsuch concurred. In essence, the […] liberal justices colluded with neo-conservatives to legalize stalking — supporting men’s “right” to harass over women’s right to feel safe. This is not just a question of the intent of language. During oral arguments, Chief Justice Roberts joked about Counterman’s cyber death threats to Whalen, and received laughter from other justices. (Slate, April 21)